JUDGMENT : SANKAR ACHARYYA, J. These three appeals have been directed by three appellants challenging the same judgment with orders of conviction and sentence dated 08.10.2012 and 09.10.2012 respectively passed by learned Additional Sessions Judge, 1st Fast Track Court, Kandi, Murshidabad in Sessions Trial No. 01 (11) 2010 arising out of Sessions Serial No. 98 of 2010 under Section 302/34 of the Indian Penal Code (in short I.P.C.). In the said judgment delivered by learned Additional Sessions Judge (hereinafter called as impugned judgment) all the three appellants have been convicted under Section 302/34, I.P.C. and sentenced to suffer imprisonment for life and also to pay fine of Rs.10,000/- each, in default to suffer rigorous imprisonment for two years each. All the appellants are detained in correctional home. In the same judgment three other accused persons have been acquitted of the same charge. The appellants have claimed in substance that the impugned judgment is bad in law and not supported by facts, circumstances and materials on record and liable to be set aside. The appellants have claimed themselves innocent and have prayed for their acquittal of the charge under Section 302/34, I.P.C. According to the case of the prosecution, in the night of 13.06.2009 and 14.06.2009 at about 12:30 a.m. while Sukumar Pattadar (victim of the case) was sleeping with his wife Latika Pattadar (appellant in CRA 97 of 2014) in the courtyard of his house some miscreants being armed with ‘Jhaba’ and other sharp cutting weapons attacked Sukumar Pattadar dragging him out of the mosquito net and assaulted him with their weapons causing his bleeding injuries and death on the spot. Regarding mens rea prosecution alleged that Sukumar Pattadar was a ration dealer and Chandan Mandal (appellant in CRA 710 of 2012) was his employee previously. In course of Chandan’s working under the victim illicit relation cropped up between Sukumar’s wife Latika and said Chandan and knowing that fact Sukumar removed Chandan from his work in ration shop. Chandan became angry and about one year before the date of occurrence of this case Chandan with his men took attempt to murder Sukumar but any how Sukumar got escaped at that time. Chandan became angry and about one year before the date of occurrence of this case Chandan with his men took attempt to murder Sukumar but any how Sukumar got escaped at that time. The incident of murder of Sukumar Pattadar was reported at Kandi Police Station by his brother Manindra Pattadar in the morning of 14.06.2009 lodging a written FIR which was registered as Kandi P.S. FIR No. 236 of 2009 dated 14.06.2009 under Section 302/34, I.P.C. Police investigated the case. Initially, the case was started against Chandan Mandal and others (not named in FIR). During investigation on prayer of the investigating police officer (in short I.O.) statements of witnesses Golok Chakraborty, Latika Pattadar (subsequently she was implicated as accused), Ashoke Pattadar and Swapan Pattadar were recorded by learned Judicial Magistrate of Kandi Court. Name of Aydul Sk., Latika Pattadar (appellant in CRA 97 of 2014), Jamjam Sk., Kurban Sk. @ Kurman Sk. (appellant in CRA 739 of 2012), Ashan @ Achen Sk., Selim Sk. and Ayub Sk. also transpired as accused and charge-sheet was submitted against Chandan Mandal and said seven accused persons. Accused Selim Sk. and Ayub Sk. absconded and did not face the trial but other six accused persons faced the trial. After trial, in the impugned judgment three appellants of these appeals were found guilty under Section 302/34, I.P.C. and convicted but other three accused namely Aydul Sk., Jayanta Sk. and Ashan @ Achen Sk. were found not guilty and acquitted. Defence of all the appellants as disclosed during trial is denial of the prosecution story and their plea of not guilty. Specific defence of appellant Latika Pattadar was that in the fateful night she was lying in the varandah and not in courtyard and her husband (victim) was working in exercise book and that the miscreants tied her with a mango tree but she could not say the names of miscreants who murdered her husband. During trial, prosecution produced seventeen witnesses namely – Manindra Pattadar (PW 1), Jagatjyoti Roy (PW 2), Dasharath Pattadar (PW 3), Swapan Pattadar (PW 4), Ashok Pattadar (PW 5), Laxmi Rani Mirdhya (PW 6), Hossain Sk. (PW 7), Gobinda Pattadar (PW 8), Dr. Sukumar Jana (PW 9), Khodabox Sk. During trial, prosecution produced seventeen witnesses namely – Manindra Pattadar (PW 1), Jagatjyoti Roy (PW 2), Dasharath Pattadar (PW 3), Swapan Pattadar (PW 4), Ashok Pattadar (PW 5), Laxmi Rani Mirdhya (PW 6), Hossain Sk. (PW 7), Gobinda Pattadar (PW 8), Dr. Sukumar Jana (PW 9), Khodabox Sk. (PW 10), Golok Chakraborty (PW 11), Sanat Pattadar (PW 12), Mojlifa Bibi (PW 13), S.I. – Kanchan Roy Mukhopadhyay (PW 14), S.I. – Joydeep Chakraborty (PW 15), S.I. – Krishna Debnath (PW 16) and S.I. – Premarish Chatterjee (PW 17). Among them PW 10 and PW 13 were not put any question by prosecution. On interrogation by the defence PW 10 stated that he was not interrogated by police. PW 16 registered the FIR at Kandi P.S. receiving the written information lodged by PW 1 on 14./06.2009. PW 14, PW 15 and PW 17 investigated the case one after another. PW 2 wrote the information which was lodged by PW 1 at Police Station. PW 1 is the informant and he is brother of the victim Sukumar Pattadar. PW 5 is another brother of the victim. PW 6, PW 7 and PW 11 are co-villagers of the victim. PW 3, PW 4 and PW 8 are cousin brothers of the victim and PW 12 is the son of the victim. PW 9 held postmortem examination over the dead body of the victim. Prosecution also adduced the written information (exhibit- 1), signatures of witnesses of inquest over the dead body of victim (exhibit- 2 series), post-mortem report (exhibit- 3), inquest report (exhibit- 4), rough sketch map of the place of occurrence (exhibit5), index of exhibit- 5 (exhibit- 5/1), a seizure list (exhibit- 6), endorsement of PW 16 on exhibit- 1 (exhibit- 7), formal FIR (exhibit8), statement of Latika Pattadar recorded as statement of witness under Section 164, Cr.P.C. (exhibit- 9) and statement of PW 11 recorded under Section 164, Cr.P.C. (exhibit- 9/1). In the impugned judgment learned Judge in the trial court has believed the PW 4, PW 5 and PW 12 as eye-witnesses of the occurrence. Placing confidence on the deposition of said three witnesses three appellants have been convicted and sentenced in the impugned judgment. In the impugned judgment learned Judge in the trial court has believed the PW 4, PW 5 and PW 12 as eye-witnesses of the occurrence. Placing confidence on the deposition of said three witnesses three appellants have been convicted and sentenced in the impugned judgment. Learned Judge in the trial court has also given importance to exhibit- 9 which is statement of Latika Pattadar recorded under Section 164, Cr.P.C. as statement of witness before implicating her as accused of the ghastly crime. Learned counsel for the appellants took us to the FIR which was lodged at P.S. at 07:05 a.m. and argued that there is no whispering about presence of PW 4 and PW 5 at that time or their witnessing the alleged occurrence. Learned counsels also drew our attention to evidence of PW 11 and urged that PW 11 did not corroborate the claim of taking shelter by PW 4 and PW 5 in the varandah of PW 11 in the fateful night as claimed by PW 4 and PW 5. It is the arguments on behalf of appellants that PW 4 is cousin brother and PW 5 is full brother of the deceased and said witnesses have made out a cock and bull story of their staying in the varandah of the house of PW 11 in the fateful night only to establish their pretence as eye-witnesses of the alleged incident of murder of Sukumar Pattadar. It was also brought to our notice during arguments that PW4 and PW 5 named Biren Chowkidar and Ram Dhali as the persons who also carried the dead body of the victim with PW 4 and PW 5 but said two persons were not examined by prosecution as witnesses. It was further urged that PW 11 on 12.11.2009 made statement before learned Judicial Magistrate under Section 164, Cr.P.C. which was marked exhibit- 9/1 did not acknowledge presence of PW 4 and PW 5 at the place of occurrence during or soon after the incident. Drawing our attention to deposition of PW 12 it was urged on behalf of appellants that it was a dark night and so identification of any miscreant by any witness in that dark night is also doubtful. It was pointed out that no incriminating weapon was recovered during investigation. Drawing our attention to deposition of PW 12 it was urged on behalf of appellants that it was a dark night and so identification of any miscreant by any witness in that dark night is also doubtful. It was pointed out that no incriminating weapon was recovered during investigation. Learned counsels have claimed that prosecution hopelessly failed to prove its case and learned Judge in the trial court failed to appreciate the evidence in application of judicial mind and so the impugned judgment is liable to be set aside with order of acquittal of the appellants. On the other hand, supporting the impugned judgment learned Additional Public Prosecutor submitted that the evidence adduced by prosecution during trial is sufficient to find the appellants guilty and learned Judge has rightly convicted and sentenced to the appellants in the impugned judgment. The determining question before us is whether the impugned judgment of conviction and sentence of the appellants is sustainable or liable to be set aside. According to the facts of this case undisputedly Sukumar Pattadar was a ration dealer and he was murdered in his house in the dead night on 14.06.2009. Convict appellant Latika Pattadar is the wife and PW 12 Sanat Pattadar is the son of said victim Sukumar Pattadar. PW 11 is next-door neighbour of the victim. It is to be ascertained first as to whether PW 4 and PW 5 are eyewitnesses of the incident of murder of the victim as claimed by both of them. PW 4 is a resident of Lalbagh which is around 50 k.m. away from the residence of the deceased at village Subhasnagar (vide second line at page 2 of the deposition of PW 3). PW 5 is resident of village Bheramara which is half a k.m. away from Subhasnagar as reveals from deposition of PW 5. The PW 4 is cousin brother and PW 5 is full brother of the victim. Both the PW 4 and PW 5 claimed in their deposition in substance that in the evening of the fateful night they went together to the residence of victim Sukumar Pattadar at village Subhasnagar to collect money but they were advised by the victim to come on the following day and they were advised to spend the night in the varandah of the house of PW 11. They have stated in substance in the same tune that they went to the bed at about 10:00 p.m. in the varandah of PW 11 and in the mid night hearing noise seeking help they rushed to the place of occurrence and witnessed the incident of chopping on victim Sukumar when appellant Latika was standing nearby. PW 5 added that they collected a torch from the house of PW 11 and witnessed the occurrence focussing the torch. They were not corroborated by PW 11 relating to their statements about their taking shelter in the varandah of PW 11 or collection of any torch from the house of PW 11 by the PW 4 and PW 5 in the fateful night. There is no explanation on the part of PW 5 as to why he, being a resident of a distance of only half a kilometer from the house of victim spent the night in the house of victim’s neighbour PW 11. According to normal cause of human conduct it would be natural for PW 5 to return his home at village Bheramara taking PW 4 with him from the house of the victim in case of their true visit in the house of Sukumar in the evening of fateful night. Even if it be believed for the sake of arguments that they stayed in varandah of PW 11 then also it would be expected that PW 4 and PW 5 took dinner in that night either in the house of their elder brother Sukumar or elsewhere in that fateful night before going to bed but both the PW 4 and PW 5 are silent on that point. It is significant to note that PW 11 was not declared hostile at the instance of prosecution. For want of corroboration by PW 11 it is difficult to believe that in the fateful night PW 4 and PW 5 took shelter in the varandah of the house of PW 11 and witnessed the incident collecting torch from the house of PW 11. In the impugned judgment learned Additional Sessions Judge failed to consider and appreciate these relevant factors. PW 4 and PW 5 claimed that their statements were recorded in court under Section 164, Cr.P.C. but such statements were not relied by prosecution as evidence during trial. Said statements have been kept with the lower court records. In the impugned judgment learned Additional Sessions Judge failed to consider and appreciate these relevant factors. PW 4 and PW 5 claimed that their statements were recorded in court under Section 164, Cr.P.C. but such statements were not relied by prosecution as evidence during trial. Said statements have been kept with the lower court records. Hearing arguments advanced on behalf of appellants we have peeped into the said statements but we do not find any story of taking shelter of PW 4 or PW 5 in the varandah of PW 11 in the fateful night. Rather, there is a different story of visit of PW 4 and PW 5 in the house of Sukumar in the fateful late night at about 11:00 p.m. / 12:00 midnight to meet Sukumar or to collect money which appears to us as a doubtful story. We like to note that at the time of examination-in-chief of PW 4 and PW 5 admitted said unexhibited statements recorded under Section 164, Cr.P.C. and so brought on record of trial but prosecution did not tender the same as evidence to corroborate the prosecution case. Under such circumstances, learned counsels for the appellants have rightly drawn our attention to those un-exhibited documents for the purpose of contradiction to the deposition of PW 4 and PW 5. Accordingly, we do peep into the supportive part in favour of the accused persons in those un-exhibited documents. Having considered the aforesaid aspects as a whole we find no alternative but to hold that PW 4 ad PW 5 are not trustworthy eye-witnesses of occurrence. In our opinion learned Judge erroneously relied on the evidence of PW 4 and PW 5 as eye-witnesses of the occurrence. PW 1 lodged FIR (exhibit- 1 read with exhibit- 8) at Kandi Police Station on 14.06.2009 at 7:05 p.m. In the FIR the PW 1 expressed his suspicion that murder of Sukumar Pattadar might have been committed by Chandan Mandal (appellant in CRA 710 of 2012) and his associates. Name of any eye-witness of the incident of murder of Sukumar has not been mentioned in the FIR. It is the settled principle that suspicion, however strong it may be, cannot take place of proof. In his evidence PW 1 did not claim himself as eye-witness of the alleged occurrence. Name of any eye-witness of the incident of murder of Sukumar has not been mentioned in the FIR. It is the settled principle that suspicion, however strong it may be, cannot take place of proof. In his evidence PW 1 did not claim himself as eye-witness of the alleged occurrence. In the same tune of FIR the PW 1 stated in examination-in-chief that on 13.06.2009 it was very hot and the victim was lying in the courtyard laying CHATAI (mat). At about 12:00/12:30 a.m. in that night some miscreants came with sharp cutting weapon namely ‘da’ etc. and chopped off the victim at random and the victim died on the spot. During cross-examination on behalf of appellant Latika Pattadar the PW 1 stated that he received information of murder immediately after the occurrence but he did not disclose the source of his information. During cross-examination on behalf of appellant Chandan, appellant Kurban and others the PW 1 stated that after the incident in question he went out of station and returned after 5/6 months and on his return he came to know the names of miscreants. During cross-examination on behalf of accused Jamjam Sk. the PW 1 stated that after lodging the complaint he went to Maharashtra and he came to know the names of miscreants from PW 4, PW 5 and PW 10 who told that they had seen the miscreants committing murder. Reasons best known to the prosecution as to why said PW 10 was not asked even a single question by prosecution during trial. On question made on behalf of accused persons the PW 10 stated that he was not interrogated by police. PW 4 and PW 5 did not state that they narrated any incident to PW 1. Contradicting himself the PW 1 stated during cross-examination done on behalf of accused Jamjam Sk. that his elder brother took his last breath on the way to doctor’s chamber at Satuibazar. Although PW 1 expressed his doubt in FIR that Chandan Mandal and his associates might have committed the crime but PW 1 stated in his deposition that Chandan Mandal led the miscreants to their house. It is a serious contradiction. Totality of the deposition of PW 1 relating to the alleged occurrence appears to us as based on hearsay. Although PW 1 expressed his doubt in FIR that Chandan Mandal and his associates might have committed the crime but PW 1 stated in his deposition that Chandan Mandal led the miscreants to their house. It is a serious contradiction. Totality of the deposition of PW 1 relating to the alleged occurrence appears to us as based on hearsay. PW 1 also stated about extra marital relationship of appellant Latika Pattadar with appellant Chandan Mandal but PW 1 did not state about his knowledge relating to such extra marital relationship and therefore, his deposition to that effect cannot be considered as more than hearsay. Be that as it may, it is proved beyond reasonable doubt that in the fateful night Sukumar Pattadar was murdered in his house premises when appellant Latika and their son PW 12 were present in that premises. PW 2 is not witness of alleged occurrence. He only scribed the written information under dictation of PW 1. The PW 1 did not say that appellant Latika went to police station with PW 1 but PW 2 made such statement during cross-examination. According to PW 2, the PW 4 and PW 5 were not present at the time of writing the complaint but they came to police station at about 10/10:30 a.m. Exhibit- 2/2 is signature of PW 4 on inquest report which was prepared at 7:35 a.m. at Kandi police station as claimed in the inquest report prepared by PW 14. The PW 4 stated during cross-examination that he signed at about 10:00 o’clock in the morning at police station. It creates a doubt relating to the time of preparation of the inquest report or presence of PW 4 at the time of holding inquest over the dead body of Sukumar Pattadar at Kandi police station. PW 3 is also not eye-witness of the alleged occurrence. According to him, he received a phone call at about 2:00 a.m. from his nephew (PW 12) that the victim was chopped off and getting such information he went to police station. He is also witness of inquest report. He also stated that Latika developed illicit relation with Chandan but PW 3 did not say about source of his knowledge relating to such relationship. He resides at Lalbagh which is around 50 k.m. away from the residence of the victim. He is also witness of inquest report. He also stated that Latika developed illicit relation with Chandan but PW 3 did not say about source of his knowledge relating to such relationship. He resides at Lalbagh which is around 50 k.m. away from the residence of the victim. During cross-examination he stated that he reached at police station at about 8:00 a.m. and he met PW 5 and Latika there. He did not say about presence of PW 1 or PW 4 at police station although they are also signatory witnesses of inquest report. PW 3 stated that he came to know from his brothers that Chandan, Selim and others committed the alleged offence but none of his brothers as witness stated that he stated the names of Chandan and Selim as the culprits of the offence. It appears to us that totality of the deposition of PW 3 relating to the commission of alleged offence and alleged illicit relationship between Latika and Chandan is nothing but hearsay in the eye of law. PW 6 is co-villager of the victim. She made imputation against character of Latika, the wife of the victim. She claimed that Latika had illicit relation with Chandan and PW 6 saw them moving inside their house. During her cross-examination on behalf of accused Jamjam Sk. she stated that she herself saw that Latika and Chandan were involved in sexual relation when the door was bolted from inside. It is her self-contradictory evidence because she did not claim that she was present inside the room which was kept bolted from inside. She also did not say how she witnessed from outside any incident involving sexual relation between Latika and Chandan inside a closed room. She also stated that she did not state that fact in her statement before police. PW 3 stated that PW 5 came and assaulted Latika and PW 12 separated them. Neither PW 5 nor PW 12 corroborated any such incident. In our view, evidence of PW 6 is not so convincing to believe any fact of illicit sexual relationship between Latika and Chandan. PW 7 is a co-villager of the victim. According to him, in the fateful night he was called by Biren Chowkidar (not examined as PW) and Ram Dhali (not examined as PW) reporting that Sukumar Pattadar was assaulted and he was required to be taken to hospital. PW 7 is a co-villager of the victim. According to him, in the fateful night he was called by Biren Chowkidar (not examined as PW) and Ram Dhali (not examined as PW) reporting that Sukumar Pattadar was assaulted and he was required to be taken to hospital. They wanted wooden plank from PW 7 for carrying Sukumar to hospital but the planks of PW 7 were found insufficient. PW 7 accompanied them to the house of Sukumar and found Sukumar was lying beside his house and Latika was present near the dead body. He also stated that Sukumar was taken on a ‘macha’ (a kind of homemade stretcher) which was tied with bamboo poles. The evidence of PW 7 does not improve or cause damage the case of prosecution. However, we find no reason to disbelieve PW 7. PW 8 is cousin brother of the deceased and a resident of Lalbagh. He stated that he came to know from PW 4 and PW 5 that Latika used to maintain illicit relation with Chandan Mandal. It is significant to note that PW 4 and PW 5 did not state that they informed the PW 8 anything against character of Latika Pattadar. As such, deposition of PW 8 relating to character of Latika is hearsay in the eye of law. He stated that he received phone call at about 3:00 a.m. from PW 4 and PW 5 that Sukumar was no more and getting such information he rushed to Kandi police station and saw the dead body of Sukumar inside dicky of a car. He is a witness in inquest report. During cross-examination he stated that police inspected the dead body at about 7:30/8:00 a.m. at police station. He met PW 1 there but he did not meet PW 4 and PW 5. This evidence indicates that all the signatories as witnesses in the inquest report did not remain present at the time of holding inquest over the dead body of victim at police station. PW 4 or PW 5 did not say that in the fateful night he informed the PW 8 that Sukumar was no more. Evidence of PW 8 also does not improve the case of prosecution against accused persons. PW 9 held post-mortem examination over the dead body of Sukumar Pattadar on 14.06.2009. PW 4 or PW 5 did not say that in the fateful night he informed the PW 8 that Sukumar was no more. Evidence of PW 8 also does not improve the case of prosecution against accused persons. PW 9 held post-mortem examination over the dead body of Sukumar Pattadar on 14.06.2009. From his evidence it appears that he found multiple fatal injuries over the dead body and he opined the nature of the death as homicidal. PW 9 is corroborated by the exhibit- 3 post-mortem report. It is proved beyond reasonable doubt from the evidence of PW 9 read with exhibit- 3 that Sukumar Pattadar was murdered on 14.06.2009. Exhibits 5 and 5/1 speak about topography of the place of occurrence as prepared by PW 14 on 14.06.2009. As per said documents the place of occurrence is courtyard of the house of the victim Sukumar Pattadar. Said place is open and in between dwelling house of the victim at the north, a temple of the house of victim at the east and kitchen of the house of victim at the west. House of PW 11 has been shown at a short distance towards east of the house of the victim. No existence of any mango tree has been shown in those documents. During cross-examination of I.O. also no question was put asserting existence of mango tree in the vicinity of place of occurrence. Exhibit- 6 is a seizure list prepared by PW14. It speaks about seizure of blood stained earth collected from the place where Sukumar Pattadar was murdered. Seizure was made on 14.06.2009 at 11:15 a.m. in presence of PW 11 and PW 12 but surprisingly the date of putting signature of PW 14 has been mentioned as 22.07.2009 instead of 14.06.2009 and no explanation of it has been given by PW 14 in his evidence. According to the facts and circumstances the PW 11 and PW 12 are vital witnesses of prosecution. It is significant to note that after examination-in-chief of PW 11 the contesting accused persons including the appellants did not feel any necessity to cross-examine that witness and his cross-examination was declined on their behalf. PW 11 stated in his examination-in-chief that he knows the brothers of Sukumar Pattadar (victim). It is significant to note that after examination-in-chief of PW 11 the contesting accused persons including the appellants did not feel any necessity to cross-examine that witness and his cross-examination was declined on their behalf. PW 11 stated in his examination-in-chief that he knows the brothers of Sukumar Pattadar (victim). He could not remember the date, month and year of the alleged incident but on 12.09.2011 he stated that the incident occurred two years ago and it was at night of a Saturday. He was lying in his house and was attracted by a noise. He saw Sukumar Pattadar was lying on the courtyard in a pool of blood. Statement of this PW 11 was recorded by learned Judicial Magistrate during investigation under Section 164, Cr.P.C. and during trial it was marked exhibit- 9/1. No question was put to PW 11 on behalf of accused persons relating to his such earlier statement during trial. In exhibit- 9/1 he stated before learned Judicial Magistrate that in the fateful night he heard a sound on the tin fence of the house of Sukumar and to enquire it PW 11 came out from his house. Hearing voice of PW 11 about 4/5 unknown persons fled away. PW 11 thought that Sukumar was assaulting his wife and he went to the house of PW 11. He saw Sukumar was lying in restless condition. PW 11 raised hue and cry. He cried. Sukumar’s wife also started weeping. Sukumar was lying on the ground and his wife was standing. None else was present there. Sukumar’s son (PW 12) was standing in the varandah. Sukumar’s wife supplied one napkin and requested PW 11 for bandage on the head of Sukumar. While PW 11 attempted for binding such bandage his two fingers were inserted near the nape of Sukumar and then Sukumar removed the hand of PW 11. Thereafter, Sukumar was restless due to severe pain and uttered, “Mo”. Then PW 11 went to call brothers of Sukumar. If exhibit- 9/1 be believed then there will be no alternative but to believe that excepting appellant Latika and her son Sanat (PW 12) none else witnessed the incident of causing of injuries of Sukumar. Thereafter, Sukumar was restless due to severe pain and uttered, “Mo”. Then PW 11 went to call brothers of Sukumar. If exhibit- 9/1 be believed then there will be no alternative but to believe that excepting appellant Latika and her son Sanat (PW 12) none else witnessed the incident of causing of injuries of Sukumar. It reveals from the unchallenged evidence of PW 11 that none of the brothers of the victim is eye-witness of the incident of hacking the victim by miscreants but they were informed about the incident by PW 11. Therefore, we find reason to believe that on being informed by PW 11 they played the post occurrence roles. It transpires from evidence of PW 11 and exhibit- 9/1 that he saw Sukumar was lying with injuries in the courtyard and Latika was present there and from the courtyard he saw PW 12 was present in the varandah of the house of Sukumar. Believing PW 12 we are convinced that it was a dark night. Simultaneously, believing version of PW 11 we are also convinced that in the said darkness of night it was possible for a man (PW 11) to see condition of a person (victim) reaching near him and to identify the persons (victim, his wife and son) from a short distance. In particular, PW 11 from courtyard identified PW 12 who was in varandah. Under such facts and circumstances as discussed above most relevant factor in favour of prosecution centres around the evidence of PW 12 (son of victim) and conduct of appellant Latika (appellant in CRA 97 of 2014). It transpires from the cross-examination of PW 5 made on behalf of Latika Pattadar during trial that Latika was a member of local gram Panchayat and at the time of her visit to different places Chandan used to accompany her. Before implicating Latika as an accused she made voluntary statement on oath before learned Judicial Magistrate under Section 164, Cr.P.C. as a witness on 04.11.2009 which was marked exhibit- 9 during trial. In exhibit- 9 it was recorded in substance that Latika and her husband were lying at the same place in their courtyard and their son was lying in the varandah of their house on a Saturday of the month of Jaistha. After 12:00 midnight 10/12 persons appeared there. Chandan (appellant in CRA 710 of 2012) caught hold her. In exhibit- 9 it was recorded in substance that Latika and her husband were lying at the same place in their courtyard and their son was lying in the varandah of their house on a Saturday of the month of Jaistha. After 12:00 midnight 10/12 persons appeared there. Chandan (appellant in CRA 710 of 2012) caught hold her. Aidul, Kurman and Ashan hacked with “jhanpa” (a sharp cutting weapon) to the husband of Latika and killed him and they went away. During her examination under Section 313, Cr.P.C. Latika Pattadar as accused claimed the evidence of PWs against her making imputation of her extra marital relation with Chandan is false. Retracting from her earlier statement made in exhibit- 9 she stated that she was not lying in the courtyard but she was lying in the varandah and where she was lying her husband was working in the exercise book. Relating to the evidence in connection with incident of chopping off Latiks’s husband Sukumar she gave explanation that the miscreants tied her with a mango tree and that she could not see the faces of miscreants as she remained tied. She did not say who murdered her husband. Although relating to evidence of other PWs accusing Chandan, Kurban, Selim and Ayub she stated that said evidence is false but relating to evidence of her son PW 12 to the effect that he saw Chandan and other miscreants assaulted his father she denied her knowledge saying, “I do not know”. We like to point out that learned Judge in the trial court omitted to refer exhibit- 9 to Latika or any other accused for explanation and so we are not inclined to use the contents of exhibit- 9 as a piece of evidence against accused persons. We like to point out that learned Judge in the trial court omitted to refer exhibit- 9 to Latika or any other accused for explanation and so we are not inclined to use the contents of exhibit- 9 as a piece of evidence against accused persons. In summing up the totality of the trend of cross-examination to PWs on behalf of appellant Latika, factum of her making statement before learned Judicial Magistrate on oath under Section 164, Cr.P.C. (exhibit- 9) and her answers to the question during examination under Section 313, Cr.P.C. it is proved beyond reasonable doubt that she was consciously present at the time of committing murder to her husband by miscreants and that while she was a member of local Gram Panchayat Chandan used to accompany her to the places of her visit and that during trial she tried to suppress her knowledge about identity of the assailants of her husband. Therefore, her conduct does not appear to us very transparent or normal. However, due to that reason only it cannot be said to be proved her extra marital illicit sexual relation with Chandan or she was involved in commission of murder to her husband. It is not the case of the prosecution that Latika assaulted her husband during the incident of murder. No overt act of Latika transpires from the totality of evidence of prosecution recorded during trial. It may be suspected that her tacit involvement was present for committing murder to her husband but in the materials on record such suspicion does not acquire the status of proof beyond reasonable doubt. It is strongly established from the facts, circumstances and evidence separating the grains from the chaff that PW 12 is most vital witness relating to the assassination of his father Sukumar. It is proved beyond reasonable doubt that in the fateful night he remained present in their house. On 12.09.2011 he deposed stating his age as 19 years and as such at the time of occurrence he was more than 17 years old. By stretch of imagination it cannot be believed that he would implicate any innocent person falsely sparing the real culprit in the case of his father’s homicidal death. As such, he is intrinsically reliable and inherently probable witness although he is son of the victim in this case. Let the PW 12 be listened. By stretch of imagination it cannot be believed that he would implicate any innocent person falsely sparing the real culprit in the case of his father’s homicidal death. As such, he is intrinsically reliable and inherently probable witness although he is son of the victim in this case. Let the PW 12 be listened. Although the prosecution claimed in FIR that in the fateful night the victim Sukumar and his wife Latika were lying in a bed in the courtyard of their house and their son PW 12 was lying in the varandah of their house but PW 12 stated that his parents were lying in a bed in the varandah and he was lying inside the room. In our opinion, it is a minor contradiction which may be ignored to ascertain the truth. That apart, the FIR maker PW 1 is not witness of the occurrence. PW 12 stated that he woke up hearing noise of his father and coming out he witnessed that his father was being assaulted by some miscreants of whom he could identify Chandan (appellant in CRA 710 of 2012) who was identified on dock by PW 12 in open Court at the time of recording his deposition in trial. He saw the miscreants to flee away after assaulting his father. PW 12 turned to his father and found his father was lying in a pool of blood and was not in a position to talk. PW 12 could not recognise the other persons attained the incident with Chandan. During his cross-examination he stated that he came alone to court 8/10 times in connection with the case before the date of recording his evidence. He was not present inside court room at the time of recording deposition of PW 11. He had no discussion about the incident of his father’s death with any person excepting the members of their house. He stated that there was blood on the bed on which his father was lying. Many persons of their locality other than his paternal uncles gathered. He mentioned names of Ramdhari and Birendra Roy out of those persons. PW 11 is their next door neighbour. He denied residence of his any uncle at Lalbagh. He mentioned the names of Manindra (PW 1), Ashoke (PW 5), Parimal (not a PW) and Swapan (PW 4) as names of his uncles. He mentioned names of Ramdhari and Birendra Roy out of those persons. PW 11 is their next door neighbour. He denied residence of his any uncle at Lalbagh. He mentioned the names of Manindra (PW 1), Ashoke (PW 5), Parimal (not a PW) and Swapan (PW 4) as names of his uncles. Since the father’s name of PW 4 and of the victim differs it is obvious that PW 4 is not full brother of the victim. Moreover, PW 1 being the full brother of the victim stated that Swapan (PW 4) is his cousin brother. PW 12 could not say whether there was any case against his uncles alleging that they tried to kill his father. PW 12 further stated that on the fateful night he was at his house and after the incident and the victim had been taken away by his uncles and Ram Dhali, Birendra Roy and others the PW 12 went to the house of one Ananda Biswas. On the following day in the afternoon he met with his uncles at Satui market where his father’s dead body was kept and therefrom they went to burning ghat on the bed of the Bhagirathi Ganga river. After cremation they returned home and reached around 9/10 p.m. He denied the suggestions that his mother did not share bed with his father in the fateful night and he did not see his father was being chopped off and that Chandan was not there among the miscreants and that Chandan was entangled at the instance of uncles of PW 12. According to PW 12, hearing noise he came out opening the door and he did not resist the accused persons from assaulting his father. He stated that it was a dark night. He has one motor cycle. His mother and he used to run the ration dealership after demise of his father and at present it is being run by PW 12 and his uncles. He stated that joint property of his father and his brothers was not partitioned and that his father had one residence at Berhampore. PW 12 was suggested that he did not state before police that he came out from his room on hearing the noise of his father but PW 12 denied that suggestion. He stated that joint property of his father and his brothers was not partitioned and that his father had one residence at Berhampore. PW 12 was suggested that he did not state before police that he came out from his room on hearing the noise of his father but PW 12 denied that suggestion. Nothing in that respect was asked to the investigating police officers on behalf of accused persons during cross-examination for the purpose of contradiction. From the totality of the evidence of PW 12 we do not find any reason to disbelieve his veracity. We believe his evidence is intrinsically reliable and inherently probable. In his evidence top to bottom nothing revealed to establish that he had any animosity against or inimical relationship with accused Chandan (appellant in CRA 710 of 2012). It is not the case of appellant Chandan that before the incident of murder of Sukumar the PW 12 did not know well to Chandan. It is significant to note that though it was a dark night PW 12 firmly stated that he saw his father was being assaulted by some miscreants of whom he came to know Chandan. In course of discussion on evidence of PW 11 and exhibit- 9/1 we have already found that it was possible to identify a person between courtyard and varandah in that darkness of fateful night. We are of the view that the evidence of sole witness PW 12 is sufficient to prove that in the fateful dark night at about 12:00/1:00 a.m. within the dwelling premises of Sukumar Pattadar he was killed by accused appellant Chandan Mandal and some other miscreants as the said fact has been proved by PW 12 beyond shadow of doubt. According to the place and time of occurrence corroboration to PW 12 need not be insisted for to arrive at just decision in the case. In our view, the evidence of sole eye-witness PW 12 in this case is sufficient under Section 134 of the Indian Evidence Act to prove the charge against appellant Chandan Mandal. PW 14, PW 15, PW 16 and PW 17 are police officers and at the relevant time they were posted at Kandi police station. PW 16 received the written information from PW 1 and registered the FIR at P.S. PW 14 took up the investigation first. PW 14, PW 15, PW 16 and PW 17 are police officers and at the relevant time they were posted at Kandi police station. PW 16 received the written information from PW 1 and registered the FIR at P.S. PW 14 took up the investigation first. After his transfer from Kandi P.S. the PW 15 investigated the case in part and after his transfer PW 17 completed the investigation. We are not very satisfied about the investigation work of the said police officers. We have already pointed out that inquest over the dead body of the victim was done not in presence of all the signatory witnesses of inquest report. We have also pointed out that in the seizure list dated 14.06.2009 the PW 14 signed putting date 22.07.2009 without any explanation. Seized blood stained earth was not sent for chemical analysis. Blood stained beddings of the victim and wearing apparel of the deceased were not seized during investigation. After several months of occurrence four persons were produced before learned Magistrate in Court for recording statements under Section 164, Cr.P.C. Such careless investigation in a murder case is not at all desirable. However, in this case such faulty investigation could not cause harm to prove the charge of murder of Sukumar Pattadar framed against Chandan Mandal. Learned counsel for the appellant of CRA 732/2012 relied upon a judgment dated 31.08.2004 of the Hon’ble Supreme Court in case No. Appeal (Crl.) 62 of 2004 in the case of Yakub Ismailbhai Patel Vs. State of Gujarat and submitted before us that the trial court ought to have drawn adverse inference against prosecution for not examining Ram Dhali and Birendra Roy as independent witnesses who removed the victim from the place of occurrence. Having gone through the said judgment we cannot accept the said arguments in this case as the said two persons were not claimed as eye-witnesses of the incident of hacking the victim by miscreants. Following the principles discussed in that judgment we are fortified to place our reliance on PW 12 only as sole eyewitness as Hon’ble Supreme Court was pleased to rely on sole eyewitness PW 2 in the cited decision. On behalf of the appellants following judgments of the Hon’ble Supreme Court of India were also cited at the time of hearing these appeals. Ram kumar Pande Vs. On behalf of the appellants following judgments of the Hon’ble Supreme Court of India were also cited at the time of hearing these appeals. Ram kumar Pande Vs. The State of Madhya Pradesh reported in AIR 1975 SC 1026 . Sujit Biswas Vs. State of Assam reported in 2013 (3) CLJ (SC) 124. Ramaiah alias Rama Vs. State of Karnataka reported in (2014) 9 SCC 365 . Prakash Vs. State of Karnataka reported in 2014 (3) Supreme 460 . Nar Singh Vs. State of Haryana reported in Judgment Today (JT) 2014 (12) SC 574. and Ganesh Gogoi Vs. State of Assam reported in (2009) 7 SCC 404 . We have gone through the said authorities and followed the principles discussed therein as far as applicable in these appeals. Having gone through the judgment in the case of Ram kumar Pande (Supra) we quote paragraph – 9 “No doubt, an FIR is previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9-15 p.m. on 23.03.1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the FIR. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case”. In the case before us we find that PW 1 is the FIR maker but he is not eye-witness of the incident of occurrence complained of. Following the observation of the Hon’ble Apex Court in the cited case we also hold in this case that had it been the fact the PW 4 and PW 5 had seen the occurrence as claimed by them and had there been knowledge of PW 1 about witnessing the occurrence by PW 4 and PW 5 before lodging the FIR, certainly there would have been such reflection in the FIR. Following that principle and considering the evidence on record with attending circumstances we do not rely upon PW 4 ad PW 5 as eye-witnesses of the incident of hacking the victim. The case of Sujit Biswas Vs. Following that principle and considering the evidence on record with attending circumstances we do not rely upon PW 4 ad PW 5 as eye-witnesses of the incident of hacking the victim. The case of Sujit Biswas Vs. State of Assam (Supra) is a case on circumstantial evidence having no eye-witness of the incidents of taking away the victim from Nepali Mandir and rape on her and killing the victim. Since the PW 12 is eye-witness of the occurrence in this case under our consideration we are of the opinion that this case is distinguishable from the case of Sujit Biswas (Supra) in factual matrix. On point of law the Hon’ble Apex Court held, “The circumstances which are not put to the accused in his examination under Section 313, Cr.P.C., cannot be used against him and must be excluded from consideration”. On that principle we do not use the exhibit- 9, which was not put to the appellants during their examination under Section 313, Cr.P.C., against the appellants in this judgment excluding the same from our consideration. In application of the ratio of the judgment of the Hon’ble Apex Court in the case of Ramaiah alias Rama (Supra) we have used the unexhibited statements of PW 4 and PW 5, recorded under Section 164, Cr.P.C. in favour of the accused appellants to arrive at the finding that PW 4 and PW 5 are not trustworthy eye-witnesses of the incident of hacking the victim Sukumar as discussed in the foregoing paragraphs of this judgment. In other respect the case under our consideration is distinguishable according to facts, circumstances and evidence on record with the reported case of Ramaiah alias Rama. In connection with omission of the trial court to put exhibit- 9 to the accused persons during their examination under Section 313, Cr.P.C. learned counsel for the appellants cited the judgments of the Hon’ble Supreme Court in the cases of Prakash Vs. State of Karnataka (Supra) and Nar Singh Vs. State of Haryana taking us through the exhibit- 9 and result of examination of appellants as accused under Section 313, Cr.P.C. in order to convince us that learned Judge in the trial court illegally relied upon exhibit- 9 in the impugned judgment against appellants. We like to reiterate that in re-appreciation of evidence we have excluded exhibit- 9 as a piece of evidence against any of the appellants. We like to reiterate that in re-appreciation of evidence we have excluded exhibit- 9 as a piece of evidence against any of the appellants. We make it clear that we do not approve the findings of trial court placing reliance on exhibit- 9 as a piece of evidence. we like to note that Hon’ble Supreme Court in paragraph- 71 of the judgment in the case of Prakash Vs. State of Karnataka (Supra) had been pleased to hold, “All that we need say is that the investigation in the case was very cursory and it appears to us that the Investigating Officer had made up his mind that Prakash had murdered Gangamma and the investigation was directed at proving this conclusion rather the other way around with the investigation leading to a conclusion that Prakash had murdered Gangamma”. In this case on our hand we are also not satisfied with the investigation works done by PW 14, PW 15 and PW 17. But it appears to us from evidence of said investigating agency and the attending facts and circumstances that the investigation work was done perfunctorily without having the aim of unfolding the truth or to establish any particular fact against any particular accused. Rather, certain acts of PW 14 as discussed earlier seem to had been done with intention to give benefit to the accused persons in trial. However, in this case we find and hold that despite the faulty investigation, without causing prejudice to any of the appellants there cannot be any reason to disbelieve the sole eyewitness who happens to be the son of the victim and one of the accused appellants. If in this case due to faulty investigation we do not give importance to the direct evidence of PW 12 as discussed in the earlier part of this judgment a wrong signal will injure the PW 12 as well as the society and in future they may lose their confidence in judicial system and they instead of seeking redress in court in case of necessity may drive themselves to appease police personnels with impression that justice is with desire of police and not in court of law. In summing up, we find and hold that among the seventeen witnesses on behalf of prosecution only PW 12 is eye-witness of the incident of murder of his father Sukuamr Pattadar. In summing up, we find and hold that among the seventeen witnesses on behalf of prosecution only PW 12 is eye-witness of the incident of murder of his father Sukuamr Pattadar. PW 1, PW 3, PW 4, PW 5, PW 7, PW 8 and PW 11 are witnesses of the happenings after completion of incident of assault on victim Sukumar Pattadar. PW 9 confirmed the nature of death of the victim is homicidal death. Prosecution failed to bring home the charge against appellant Kurban Sk. @ Kurman Sk. and he deserves acquittal. Appellant Latika Pattadar is entitled to get the benefit of doubt for want of sufficient proof regarding her involvement in commission of the murder of her husband and she deserves acquittal. Active participation of appellant Chandan Mandal in the incident of hacking Sukumar Pattadar to death has been proved beyond shadow of doubt and he is liable to be punished of the charge of committing murder to Sukumar Pattadar. Findings made in the impugned judgment contrary to our observations made in this judgment are not sustained. The impugned judgment requires modification. By modification we are satisfied to uphold the conviction and sentence of accused appellant Chandan Mandal and to discard the conviction and sentence of other two accused appellants Latika Pattadar and Kurban Sk. @ Kurman Sk. Accordingly, CRA 739 of 2012 and CRA 97 of 2014 are allowed and CRA 710 of 2012 is dismissed. Conviction and sentence of accused appellants Kurban Sk. @ Kurman Sk. and Latika Pattadar are set aside. Conviction and sentence of accused appellant Chandan Mandal are confirmed. Appellants Latika Pattadar and Kurban Sk. @ Kurman Sk. are acquitted of the charge under Section 302/34, I.P.C. They are set at liberty and be released forthwith from custody if their detention in any other case is not wanting. A copy of this judgment alongwith L.C.R. be sent to the trial court from the department. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties or their advocates on record promptly observing requisite formalities. I agree.